SEARS et al v. USA

Filing 168

REPORTED OPINION and ORDER granting plaintiffs' motion for approval of settlement. The Clerk is directed to enter judgment in the total amount of $3,455,216.13, consisting of $2,237,169.00 in principal and $443,514.16 in interest through December 31, 2017 for prevailing class members, and $541,722.00 in attorneys' fees and $232,810.97 in litigation costs awarded to class counsel pursuant to the Uniform Relocation Act. Interest shall accrue on the total amount of this judgment at the rate of 3.39% from January 1, 2018 through the date of payment by the Department of the Treasury. The judgment is payable to class counsel for distribution to the class according to the terms of this opinion and order a nd the Settlement Agreement. The claims of those class members listed in Exhibit B, admitted at the Fairness Hearing, are dismissed. This opinion and order shall not affect the claims of the members of the trial subclass. Signed by Judge Charles F. Lettow. (je)

In the United States Court of Federal Claims
Nos. 12-889L; 13-404L; 16-1233L (Consolidated)
(Filed: May 8, 2018)
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Plaintiffs,
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v.
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UNITED STATES,
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Defendant.
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CLAUDE SEARS, et al.,

Rails-to-trails takings case; class action;
settlement; fairness hearing; RCFC
23(e)

Thomas S. Stewart, Stewart, Wald & McCulley, L.L.C., Kansas City, Missouri, for
plaintiffs. With him on the briefs were Elizabeth McCulley and Steven M. Wald, Stewart, Wald
& McCulley, L.L.C., St. Louis, Missouri and Kansas City, Missouri, and J. Robert Sears, Baker
Sterchi Cowden & Rice, L.L.C., St. Louis Missouri.
David L. Negri, Trial Attorney, Natural Resources Section, Environment and Natural
Resources Division, United States Department of Justice, Boise, Idaho, for defendant. With him
on the briefs was Jeffrey H. Wood, Acting Assistant Attorney General, Environment and Natural
Resources Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER
LETTOW, Judge.
Pending before the court in this rails-to-trails class action is the parties’ Joint
Compromise Settlement Agreement which has been the subject of notice to class members and a
fairness hearing regarding the terms of the settlement. This agreement represents the resolution
of claims by 158 members of a settlement subclass that the federal government, acting under the
National Trails System Act Amendments of 1983, Pub. L. No. 98-11, § 208, 97 Stat. 42, 48
(codified at 16 U.S.C. § 1247(d)), took their property without just compensation in contravention
of the Takings Clause of the Fifth Amendment of the United States Constitution. See Second

Am. Compl. ¶¶ 3-4, ECF No. 33; Hr’g Tr. 8:5-13 (Apr. 12, 2018).1 The court had previously
granted Class Counsel’s Motion for Preliminary Approval of the Settlement and to Approve
Notice to the Settlement Subclass Members Regarding Proposed Class Action Settlement and
Request to Set Date for Public Hearing under RCFC 23(e) (“Pls.’ Mot.”), ECF No. 154, and had
authorized issuance of a revised notice of settlement to the class members. See generally Order
of Feb. 2, 2018 & Attach. 1, ECF Nos. 160 & 160-1. Following notice to the class and receipt of
class members’ responses, a hearing on the fairness of the settlement agreement was held on
April 12, 2018. For the reasons stated, the court grants final approval to the settlement
negotiated by the parties.
BACKGROUND
A.

The Takings Claim

The land at issue in this class action is a “railroad corridor in Marshall and Hardin
Counties, Iowa . . . . [that] was previously held as a right-of-way for railroad purposes by the
Iowa River Railroad.” Pls.’ Mot. at 2; see also Joint Compromise Settlement Agreement
Between Pls. and the United States, Hr’g Tr. Ex. C at 1;2 Joint Stipulation Pertaining to Am. Ex.
C, Attach., ECF No. 167-1 (Amended Joint Compromise Settlement Agreement Between Pls.
and the United States) (“Settlement Agreement”).3 The corridor spans 34.35 miles, from
milepost 243.35 to milepost 209. Pls.’ Mot. at 2. As the parties recount, the Surface
Transportation Board issued a Notice of Interim Trail Use (“NITU”) on August 2, 2012, pursuant
to which Iowa River Railroad’s interests in the railroad corridor were eventually transferred to
the Iowa National Heritage Foundation. See Second Am. Compl. ¶¶ 176-177. The Iowa
National Heritage Foundation subsequently transferred these interests to Hardin County, Iowa
“to use the corridor for trail development.” Settlement Agreement at 1. This 34.35 mile span
has now “been railbanked for possible future reactivation as a railroad pursuant to the National
Trails System Act.” Settlement Agreement at 1.
Plaintiffs filed suit on December 18, 2012, amending their complaint first on June 14,
2013, and then again on October 13, 2014. Plaintiffs alleged that the railroad corridor “lay
1

The date will be omitted from further citations to the transcript of the fairness hearing.

2

At the fairness hearing, the court admitted into the record three exhibits proffered by the
parties, viz., Exhibit A, a listing of class claimants to be compensated showing the pertinent
parcel numbers, the individual settlement amounts and value, and the interest accrued through
December 31, 2017; Exhibit B, a listing of dismissed parcels, and Exhibit C, the Joint
Compromise Settlement Agreement Between Pls. and the United States. In the following
portions of this opinion, these exhibits will be cited only by their letter, e.g., “Ex. A.”
3

The court held a status conference on May 1, 2018 to address certain ambiguities and
typographical errors in the Joint Compromise Settlement Agreement submitted to the court as
Exhibit C at the fairness hearing. The parties subsequently submitted a stipulation to the court
attaching a corrected agreement, see Settlement Agreement. Consequently, further references to
the Settlement Agreement will be to the amended version provided pursuant to the parties’
stipulation of May 1, 2018.
2

across property owned by [p]laintiffs,” and that, absent the NITU and eventual railbanking,
“[u]pon abandonment of the easement by [the Iowa River Railroad], [p]laintiffs’ property would
have been unburdened by any easement.” Second Am. Compl. at ¶ 4. Plaintiffs sought “a
monetary judgment . . . representing the full fair market value of the property taken by the United
States on the date [the Surface Transportation Board issued the NITU], including severance
damages and delay damages, and costs and attorneys’ fees.” Second Am. Compl. at 54.
The court certified “the case as an opt-in class action pursuant to Rule 23 . . . on July
10[,] 2013.” Hr’g Tr. 9:1-5; see also Order of July 10, 2013, ECF No. 14. The plaintiff class
“originally [consisted of] 171 landowners who [collectively] owned 307 parcels” of land affected
by the NITU. Hr’g Tr. 10:25 to 11:1. Following class certification, a second case was filed
regarding land in the corridor, and that case Gehrke Quarries, was consolidated with the first
case. See Order of June 11, 2014, ECF No. 26; see also Gehrke Quarries, Inc. v. United States,
No. 13-404L (June 11, 2014), ECF No. 20. The additional plaintiff owned four additional
parcels.
The parties had arrived at a tentative settlement as to many of the relevant issues in the
case when, in December 2015, the owners of 21 parcels sought to withdraw from the nascent
settlement agreement and proceed to trial on their claims. The court subsequently split the class
into a settlement subclass and a trial subclass. See Order of Dec. 22, 2015, ECF No. 61.4
Following the establishment of settlement and trial subclasses, two landowners, holding a
combined five parcels of land, opted to leave the trial subclass and rejoin the settlement subclass.
Hr’g Tr. 11:24 to 12:2.
In developing the settlement agreement, the parties retained appraisers for the purpose of
determining the fair market value of the property interests allegedly taken. See Pls.’ Mot. at 3.
As plaintiffs note, “Class Counsel retained both Gene Nelson, MAI, [and] . . . David Matthews,
MAI[ while the United States] retained Patrick Schulte, MAI, [and] . . . Gary Thien.” Id. The
appraisers conducted site visits, “gathered an extensive amount of factual information,” and “the
parcels within the settlement subclass were generally grouped into various categories based
upon” a number of relevant characteristics. Id. at 3-4. Class counsel represents that the
appraisers selected representative parcels from the relevant categories and prepared full appraisal
reports on those parcels, and that these reports served as the basis for “a significant and lengthy
negotiation period[ that] ultimately [resulted in] a compromise agreement that includes the value
of the land taken for all of the parcels in the settlement subclass.” Id. at 4.
B. Notice to the Class Members and the Fairness Hearing
Eventually, the parties reached agreement on the terms of a settlement, which terms were
“approved . . . by the Surface Transportation Board and the appropriate representatives of the
4

Surprisingly, resolution of the claims of the trial subclass occurred well before action on
the claims of the settlement subclass. A five-day trial was held on the trial subclass’ claims from
August 1 through 5, 2016, and, after post-trial briefing, the court’s decision on those claims was
entered March 8, 2017. See Sears v. United States, 132 Fed. Cl. 6 (2017), appeal pending, No.
17-2172 (Fed. Cir.).
3

Attorney General.” Hr’g Tr. at 16:11-14; see also Joint Status Report (Dec. 21, 2017), ECF No.
153 (reporting that the settlement had been approved). The plaintiffs’ motion for preliminary
settlement was filed on January 10, 2018. See generally, Pls.’ Mot. The government did not join
in that motion, noting in its response that “[t]he United States generally supports the terms of the
settlement described by Class Counsel[, but that] . . . [t]he United States ha[d] two
concerns . . . [relating to] the form of notice to class members[ and] . . . the separate fee
agreements between Class Counsel and a number of class members.” United States’ Resp. to
Class Counsel’s Mot. for Prelim. Approval of the Settlement (“Def.’s Resp.”) at 1, ECF No. 158.
The plaintiffs addressed those concerns, see Class Counsel’s Reply to Def.’s Resp. to Class
Counsel’s Mot. for Prelim. Approval of the Settlement (“Pls.’ Reply”), ECF No. 159, and the
court considered the parties’ positions regarding the form of notice and the separate fee
agreements and revised the proffered form of notice to address the parties’ positions, see Order
of February 2, 2018 (“Notice Order”), ECF No. 160.
The notice each class member received “describe[d] the terms of the proposed
settlement; . . . alert[ed] the settlement subclass [p]laintiffs of their rights and obligations under
the terms of the proposed settlement; and . . . inform[ed] the settlement subclass plaintiffs of the
opportunity to comment on and/or object to the proposed settlement in advance of the [fairness
hearing].” Pls.’ Mot. at 7; see also Notice Order & Attach. 1 (setting out the revised notice
approved by the court to be mailed to each member of the settlement subclass). Each class
member also received “an individualized disclosure that describe[d] in detail how his/her
compensation ha[d] been calculated[, including] . . . the principal of the settlement amount
allocated to that claimant and the estimated amount of interest that ha[d] accrued through
December 31, 2017.” Pls.’ Mot. at 8; see also Pls.’ Mot. Ex. C at 5-6 (providing a form for
identification of each class member’s damages, interest, share of attorneys’ fees, and net
recovery including, where applicable, any amounts deducted as a result of a class member’s
separate fee arrangement with counsel).
At the fairness hearing, class counsel reported that the final settlement subclass is
comprised of “158 landowners who collectively own 253 parcels of land.” Hr’g Tr. 12:2-4 &
Ex. A (listing the plaintiffs whose claims would be compensated). Of the 158 class members,
137 have affirmatively expressed their approval of the Settlement Agreement. See Hr’g Tr. at
18:18 to 19:11 (noting that two additional approvals were received after the deadline contained
in the notice mailed to the class); Notice of Compliance Pertaining to Class Members’ Responses
to Class Action Settlement Notice (“Class Members’ Responses”) (Mar. 23, 2018) at 1, ECF No.
163, (reporting 135 approvals). “[N]o class members objected to the proposed settlement or their
individual allocation amounts, and five class members notified . . . the [c]ourt . . . of their
intention to either attend or to participate in the fairness hearing.” Hr’g Tr. at 18:20 to 19:1; see
also Hr’g Tr. at 21:6 to 26:1 (recording the presence and expressions of approval by class
members present at the fairness hearing, none of whom wished to comment further on the
proposed settlement). Five members of the class also submitted, along with their approvals,
comments on the proposed settlement. See Class Members’ Responses; see also Hr’g Tr. at
26:2-19 (recounting and addressing one such comment submitted by a class member, relating to
the trail authority’s maintenance of the trail and problems with trespassers).

4

At the fairness hearing, class counsel averred that “[t]he settlement is fair across the
board for all class members because it is based on the amount of land actually taken from each
class member and is specifically based on the value of their specific property as negotiated over
[a] several-year period of time.” Hr’g Tr. 20:11-16. Counsel for the government reiterated its
agreement with the terms of the Settlement Agreement, and recommended approval of the
settlement as fair. See Hr’g Tr. at 21:1-5 (noting that the United States has “no disagreement
with any of [class counsel’s] presentation, and [that] the United States would join in the motion
to approve the settlement”).
C. The Terms of the Settlement Agreement
The Settlement Agreement sets out the specific amounts the government has agreed to
pay to the settlement subclass. The sum of $2,237,169.00 will be paid to the claimants in the
settlement subclass as just compensation, apportioned to each class member according to the
specific amounts shown in Exhibit A to plaintiffs’ motion for approval of the settlement.
Settlement Agreement ¶ 5; see also Pls.’ Mot. at 5-6 & Ex. A; Hr’g Tr. at 14:1-5. The just
compensation is coupled with $443,514.16, representing the amount of interest that has accrued
on the principal from August 3, 2012, the date of the taking, to December 31, 2017. Settlement
Agreement ¶ 5; Hr’g Tr. at 14:6-9. The government has agreed to pay “statutory attorneys’ fees
and costs of $774,532.97 pursuant to” the Uniform Relocation Assistance and Real Property
Acquisition Policies Act (“Uniform Relocation Act”), Pub. L. No. 91-646, § 304, 84 Stat. 1894,
1906 (codified, as amended, at 42 U.S.C. § 4654(c));5 Settlement Agreement ¶ 5, which amount
reflects $541,722.00 in fees and $232,810.97 in costs. Hr’g Tr. 14:10-15. These sums result in a
total payment of $3,455,216.13. Interest will accrue “on the total sum stated in paragraph 5 [of
the Settlement Agreement, totaling $3,455,216.13,] from January 1, 2018, through the date of
payment, at an annual interest rate of 3.39%.” Settlement Agreement at ¶¶ 5-6; see also Hr’g Tr.
at 15:2-5. Upon approval by the court, the “settlement will be submitted by the United States to
the [United States] Department of the Treasury for payment.” Settlement Agreement ¶ 8.
Additionally, plaintiffs’ counsel reported that, as part of the settlement agreement, 42
parcels will be dismissed from the suit, resulting in a complete dismissal of the claims of nine
class members and a partial dismissal of the claims of other plaintiffs. See Hr’g Tr. 11:5-17;
5

Section 4654(c) provides:
The court rendering a judgment for the plaintiff in a proceeding brought under
section 1346(a)(2) or 1491 of Title 28, awarding compensation for the taking of
property by a [f]ederal agency, or the Attorney General effecting a settlement of
any such proceeding, shall determine and award or allow to such plaintiff, as a
part of such judgment or settlement, such sum as will in the opinion of the court
or the Attorney General reimburse such plaintiff for his reasonable costs,
disbursements, and expenses, including reasonable attorney, appraisal, and
engineering fees, actually incurred because of such proceeding.

42 U.S.C. § 4654(c).

5

Settlement Agreement ¶ 4; Ex. B (listing the parcels to be dismissed without compensation).
These claims will be dismissed with prejudice and without compensation. See Settlement
Agreement ¶ 4.
ANALYSIS
The approval of settlement agreements in certified class actions is governed by Rule
23(e) of the Rules of the Court of Federal Claims (“RCFC”), and attorneys’ fees and costs
awards are governed by Rule 23(h). Rule 23(e) provides that, “[t]he claims . . . of a certified
class may be settled . . . only with the court’s approval,” and provides the path that such approval
must take. The touchstone is whether the parties’ proposed settlement is “fair, reasonable, and
adequate.” Rule 23(e)(2).
A. Approval of the Settlement Agreement
Rule 23(e) governs approval of a settlement that purports to bind all members of a class,
and prescribes the procedures that must be followed:
(1) The court must direct notice in a reasonable manner to all class
members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may
approve it only after a hearing and on finding that it is fair,
reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying
any agreement made in connection with the proposal.
(4) [Not used.]
(5) Any class member may object to the proposal if it requires
court approval under this subdivision (e); the objection may be
withdrawn only with the court’s approval.
RCFC 23(e)(1)-(5).6
In accord with Rule 23(e)(1), the court directed notice be sent to the members of the
settlement subclass regarding the terms of the proposed settlement. See Notice Order. Pursuant
to Rule 23(e)(3), the parties have “file[d] a statement identifying any agreement made in
connection with the proposal.” See generally Settlement Agreement; Pls.’ Mot. at 5-6 (reporting
the terms of the parties’ proposed agreement); Def.’s Resp. (reporting substantive agreement
with the terms of the proposed agreement and noting minor objections respecting the proposed
notice); Notice Order (specifying the court approved notice, amended to reflect the parties’
briefing). The notice was issued to the class, informing class members of their right to object to
the proposal under Rule 23(e)(5), and a hearing was held to determine if the settlement
agreement should be approved. See Rule 23(e)(2); Notice Order (setting a date for a fairness
6

RCFC 23 is substantially similar to its corresponding provision of the Fed. R. Civ. P.,
and decisions applying Fed. R. Civ. P. 23 are persuasive in this court. See Haggart I, 89 Fed. Cl.
523, 529 (2009) (citing Barnes v. United States, 68 Fed. Cl. 492, 494 & n.1 (2005)).
6

hearing in Eldora, Iowa). The remaining requirement that must be met for the parties’
Settlement Agreement to be approved is that the court must find the parties’ proposal “fair,
reasonable, and adequate.” RCFC 23(e)(2).
In making this determination, the court looks to the twin elements of procedural and
substantive fairness. See Christensen v. United States, 65 Fed. Cl. 625, 629 (2005) (citing
Weinberger v. Kendrick, 698 F.2d 61, 73-74 (2d Cir. 1982) (Friendly, J.)) (“Determination
whether a proposed class action settlement is fair, reasonable, and adequate involves
consideration of two types of evidence. The primary concern is with the substantive terms of the
settlement . . . [and,] to supplement the . . . necessarily limited examination of the settlement’s
substantive terms, attention also has been paid to the negotiating process by which the settlement
was reached.”).
Procedural fairness is concerned with “whether the settlement resulted from ‘arms-length
negotiations and whether plaintiffs’ counsel have possessed the experience and ability, and have
engaged in the discovery, necessary to effective representation of the class’s interests.”
Christensen, 65 Fed. Cl. at 629 (citing D’Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.
2001)) (internal alterations omitted).
Substantive fairness is concerned with whether the terms of the settlement are “fair,
reasonable, and adequate,” RCFC 23(e)(2), an evaluation which looks to a number of possible
factors. While Rule 23 does not provide a definitive list of factors to be applied in determining
whether a settlement negotiated by the parties is substantively fair, courts have considered a
number of factors, including:
(1) The relative strengths of plaintiffs’ case in comparison to the
proposed settlement, which necessarily takes into account:
(a) [t]he complexity, expense and likely duration of the
litigation;
(b) the risks of establishing liability;
(c) the risks of establishing damages;
(d) the risks of maintaining the class action through trial;
(e) the reasonableness of the settlement fund in light of the
best possible recovery;
(f) the reasonableness of the settlement fund to a possible
recovery in light of all the attendant risks of litigation;
(g) the stage of the proceedings and the amount of
discovery completed; [and]
(h) the risks of maintaining the class action through trial;
(2) The recommendation of the counsel for the class regarding the
proposed settlement, taking into account the adequacy of class
counsels’ representation of the class;
(3) The reaction of the class members to the proposed settlement,
taking into account the adequacy of notice to the class
members of the settlement terms;
(4) The fairness of the settlement to the entire class; [and]

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(5) The fairness of the provision for attorney fees . . . .
Dauphin Island Prop. Owners Ass’n v. United States, 90 Fed. Cl. 95, 102-103 (2009) (collecting
cases). A further consideration in reviewing the fairness of the parties’ proposed settlement is
“the interest in encouraging settlements, particularly in class actions, which are often complex,
drawn out proceedings demanding a large share of finite judicial resources.” Christensen, 65
Fed. Cl. at 629 (citations omitted).
The court concludes that the settlement is both procedurally and substantively fair. The
parties’ negotiations were supported by appraisal reports produced by four appraisers, see supra,
at 3, and the Settlement Agreement was reached by “a significant and lengthy negotiation
period,” Pls.’ Mot. at 4; see also Hr’g Tr. at 20:2-4 (noting that the “settlement was certainly
negotiated at arm’s length actually over three-plus years.”). During the negotiations, the parties
filed numerous joint status reports apprising the court of the parties’ progress towards settlement.
See, e.g., ECF Nos. 143, 145-151, 153, 155. The parties’ negotiations at times involved
disagreements as to the progress the settlement talks were making, leading to the filing of
separate status reports, see, e.g., ECF Nos. 145, 146, 152, 155, but the parties’ submissions to the
court throughout this process indicated a continuing desire, despite delays in defendant’s process
for obtaining approval of the Settlement Agreement, see e.g., Def.’s Status Report, ECF No. 146,
to resolve the claims of the settlement subclass without further litigation. In the circumstances,
the court is satisfied that the parties’ negotiations were conducted without collusion and with an
interest in ultimately resolving this case by settlement.
Further, the court finds that class counsel have acted as zealous advocates for class
members throughout the course of this case. They have demonstrated a commendable level of
effort in keeping class members informed of the status of the negotiations, see, e.g., Joint Status
Report, ECF No. 152 (In plaintiffs’ position statement, class counsel reports that “[d]ozens of
[c]lass [m]embers constantly call [c]lass [c]ounsel . . . .”); Pls.’ Mot. at 8 (reporting the contents
of the notice class counsel proposed to send to class members, and noting that “[i]n fact, [c]lass
[c]ounsel represents that all members of the settlement subclass have already received initial
disclosures concerning their settlement amounts.”); Class Members’ Responses (reporting the
comments of the representative of the Charles E. Lakin Revocable Trust as being “[g]reat work,
excellent settlement. Thank you.”), and engaged in a thorough process of appraisals, site visits,
and settlement negotiations, see, e.g., Pls.’ Mot. at 3-4. In short, the court is satisfied that the
negotiations that produced the Settlement Agreement “resulted from arm’s-length negotiations
and that plaintiffs’ counsel have possessed the experience and ability, and have engaged in the
discovery, necessary to effective representation of the class’s interests.” D’Amato, 236 F.3d at
85 (internal citations omitted).
The court also concludes that the terms of the Settlement Agreement are substantively
fair. The initial consideration in this vein is whether the settlement reflects the likely costs and
rewards of further litigation. The parties’ respective appraisers conducted appraisals that
resulted in individual property valuations that both parties found satisfactory to support
settlement negotiations. See Pls.’ Mot. at 3-4. The notice sent to the class stated class counsel’s
recommendation that “even if the case were to proceed to litigation . . . it is unlikely that
plaintiffs would be able to establish entitlement to just compensation in an amount significantly

8

greater than provided for in this settlement.” Notice of Proposed Settlement at 2. The court
concurs. In light of the lengthy negotiation, supported by the parties’ respective appraisals, the
court concludes that the Settlement Agreement is a reasonable result when balancing the
strengths and weaknesses of the plaintiffs’ case with the likely costs and uncertainties
appurtenant to proceeding to trial.
Class counsel has submitted that
[i]t is the recommendation of class counsel that the [c]ourt approve the
settlement for the entire settlement subclass. As the [c]ourt can tell, the reaction
of class members has been overwhelmingly positive since no objections of any
kind have been received.
The settlement is fair across the board for all class members because it is based
on the amount of land actually taken from each class member and is specifically
based on the value of their specific property as negotiated over that several-year
period of time.
Hr’g Tr. at 20:5-16; see also, e.g., Raulerson v. United States, 108 Fed. Cl. 675, 678 (2013)
(“[T]he professional judgment of plaintiff’s counsel is entitled to considerable weight in the
court’s determination of the overall adequacy of the settlement.”) (citing Dauphin, 90 Fed. Cl. at
104 (quoting National Treasury Employees Union v. United States, 54 Fed. Cl. 791, 797
(2002))). The fact that the members of the settlement subclass have overwhelmingly approved
the terms of the proposed Settlement Agreement, see Hr’g Tr. at 20:7-10, 21:1-5, with none
objecting, is instructive.
The court also concludes that the settlement is fair to the class as a whole. The settlement
amount, allocated as it is based on each class member’s individual property interest, adequately
and fairly represents the strength and magnitude of each class member’s claims. A settlement is
fair when it is “‘uniformly available’ to the entire class while also [being] ‘tailored to distinct
groups within the class.’” Bailey v. United States, 128 Fed. Cl. 550, 555 (2016) (citing Berkley
v. United States, 59 Fed. Cl. 675, 711 (2004)). The parties each retained appraisers to produce
valuation reports for purposes of informing settlement negotiations, see supra, at 3, and the
amounts reported as just compensation in the Settlement Agreement are allocated based on each
class member’s actual property interest. See Ex. A (reporting the subclass member’s individual
amounts).
The Settlement Agreement negotiated by the parties would also provide members of the
class with a more certain resolution of this case by avoiding further proceedings—and the
attendant uncertainty—of resolving this case by trial. See Sabo v. United States, 102 Fed. Cl.
619, 627 (2011); cf. also Class Members’ Responses at 10.
The court also finds as reasonable the contingency fee agreements certain class members
have entered into with class counsel. See Hr’g Tr. at 17:21 to 18:11 (class counsel reporting that,
of the 158 class members, 114 entered into contingency fee agreements of 33%, and 44 class
members did not enter into any contingency fee agreements). These agreements were

9

affirmatively entered into between class members and class counsel, and neither the government
nor any class member has lodged an objection as to those agreements.
B. Approval of Attorneys’ Fees and Costs
Rule 23(h) provides that “[i]n a certified class action, the court may award reasonable
attorneys’ fees and nontaxable costs that are authorized by law or by the parties’ agreement.”
RCFC 23(h). The inquiry in this vein is whether the award is a reasonable approximation of the
amount due under the statute. Raulerson, 108 Fed. Cl. at 678-79. In that respect, the court finds
that the $774,532.97 in attorneys’ fees and costs provided for in the Settlement Agreement
pursuant to the Uniform Relocation Act is fair. This amount includes $541,722.00 in attorneys’
fees, and $232,810.97 in costs. See supra, at 5. Class counsel ushered this case through a multiyear negotiation, the arm’s-length settlement process resulted in a jointly agreed amount for fees
and costs between class counsel and the United States, and the amounts agreed under the
Uniform Relocation Act were disclosed to the class members and no objections were recorded.7
The court thus approves the Settlement Agreement’s provision for $774,532.97 in attorneys’ fees
and costs, taking into account the amounts called for under the contingency fee agreements that
certain class members agreed with class counsel.
CONCLUSION
For the reasons stated, plaintiffs’ motion for approval of the Settlement Agreement,
joined by the government, is GRANTED. The clerk is directed to enter judgment in the total
amount of $3,455,216.13, consisting of $2,237,169.00 in principal and $443,514.16 in interest
through December 31, 2017 for prevailing class members, and $541,722.00 in attorneys’ fees
and $232,810.97 in litigation costs awarded to class counsel pursuant to the Uniform Relocation
Act. Interest shall accrue on the total amount of this judgment at the rate of 3.39% from January
1, 2018, through the date of payment by the Department of the Treasury. The judgment is
payable to class counsel for distribution to the class according to the terms of this opinion and
order and the Settlement Agreement.8

Resolution of the settlement subclass’ claims was delayed for several years after
agreement in principle on the amount of just compensation had been reached. See supra, at 3 &
n.5, 8. Class counsel’s fees and reimbursement of costs has been postponed as a result. Over
two years ago, on April 1, 2016, class counsel filed a motion for attorneys’ fees and costs; see
Pls.’ Mot. for an Award of Reasonable Attorneys’ Fees and Costs for the Settlement Subclass
Under the Uniform [Relocation] and Real Property [Acquisition Policies] Act of 1970, ECF No.
75, but the court deferred ruling on that motion until the merits of the case had been presented,
see Order Deferring Ruling on Mot. for Attorney Fees (Aug. 11, 2016), ECF No. 94. The terms
of the Settlement Agreement provide a resolution of this motion respecting attorneys’ fees for the
settlement subclass.
7

8

The claims of those class members listed in Exhibit B are dismissed. This opinion and
order shall not affect the claims of the members of the Trial Subclass.

10

The clerk shall enter judgment in accord with this disposition.
It is so ORDERED.

s/ Charles F. Lettow
Charles F. Lettow
Judge

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